Cain v Robson - [2020] WASC 63

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CAIN -v- ROBSON [2020] WASC 63
CORAM:   MCGRATH J
HEARD:   27 FEBRUARY 2020
DELIVERED          :   28 FEBRUARY 2020
FILE NO/S:   SJA 1140 of 2019
BETWEEN:   DAVID GEORGE CAIN
Appellant
AND
RUTH ROBSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J HAWKINS
File Number            :   JO 11582/2018

Catchwords:

Criminal law - Appeal against sentence - Unlawful Wounding - Section 301(1) of the Criminal Code (WA) - Sentence manifestly excessive - Express errors of law - Leave to appeal granted - Appeal allowed

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 9(1), s 9(2), s 14
Criminal Code (WA), s 5(1), s 5(8), s 301(1)
Interpretation Act 1984 (WA), s 5, s 67(1a)
Sentencing Act 1995 (WA), s 4, s 6, s 9, s 9AA, s 39(2), s 42(2)

Result:

Leave to appeal granted on ground 2
Appeal allowed
Sentence set aside
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	Ms K Kumar
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Kaminni Kumar
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Messaoui v R (Unreported, CCAWA, Library No 92101, 4 December 1991)
Moran v The State of Western Australia [2011] WASCA 137
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Powell v Tickner [2010] WASCA 224
R v Barbis & Rouse [2003] WASCA 107
Rodi v The State of Western Australia [No 2] [2014] WASCA 233
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smith v The State of Western Australia [2010] WASCA 176
The State of Western Australia v Smith [2016] WASCA 153

MCGRATH J:

Mr Cain was charged with one offence of unlawful wounding, contrary to s 301(1)(b) of the Criminal Code (WA). Mr Cain pleaded not guilty. However, on the first day of his trial Mr Cain pleaded guilty and was subsequently sentenced in the Magistrates Court. Mr Cain now seeks leave to appeal against the sentence imposed. Mr Cain contends that the magistrate made an express error of law at sentencing and further, imposed a sentence that was manifestly excessive.
For the following reasons, I have determined that leave to appeal should be granted, the appeal must be allowed and Mr Cain must be resentenced.
In these reasons for decision, I will consider the following:
(a)The charge on the Prosecution Notice.
(b)The Magistrates Court sentencing hearing.
(c)The grounds of appeal.
(d)An assessment of the merits of the appeal.

The charge on the Prosecution Notice

The Prosecution Notice lodged on 17 September 2019 pleaded that Mr Cain unlawfully wounded another contrary to s 301(1) of the Criminal Code.[1]On 4 December 2018, the prosecution made application to amend the Prosecution Notice by pleading that the unlawful wounding occurred in circumstances of aggravation, namely in a family or domestic relationship, contrary to s 301(1)(a) of the Criminal Code. Upon that amendment being made to the charge Mr Cain pleaded not guilty.[2] On 3 September 2019, the prosecution made an application to amend the charge by deleting the circumstance of aggravation, namely that the wounding occurred in a family or domestic relationship. Upon that amendment being made to the charge Mr Cain pleaded guilty to the charge of unlawful wounding contrary to s 301(1) of the Criminal Code.[3]
[1] Prosecution Notice lodged 17 September 2018, charge number JO 11582/2028.
[2] Charge number JO 11582/2018 Record of Court Proceedings.
[3] Charge number JO 11582/2018 Record of Court Proceedings.

The Magistrates Court sentencing hearing

On 3 September 2019, Mr Cain appeared in the Magistrates Court represented by a legal practitioner. The magistrate read the amended charge to Mr Cain and he pleaded guilty to that charge.[4] Her Honour ordered a pre-sentence report and adjourned sentencing to 7 October 2019.[5]
[4] ts 2 (3/9/2019).
[5] ts 5 (3/9 2019).
On 7 October 2019, Mr Cain appeared in the Magistrates Court to be sentenced. The facts, which were not disputed by Mr Cain, were read to the court in the following terms:[6]
At 10.20 am, Sunday, 16 September 2018 the accused was at [an] address in Duncraig, the address of a witness. The accused attended the address in company with the complainant to help the witness pack up his address in preparation to move house. At about 3.10 pm that day the accused was out the front of the address talking on the phone to an unknown person. The accused terminated the call and walked over to the complainant, who was also out the front of the premises helping the witness tie items to a trailer.
The accused held a small yellow knife in his hand. Without saying anything, the accused stabbed the complainant once to the upper left chest area, causing a small wound to that area. The accused stabbed the complainant a second time, this time connecting with his chin, causing a small wound. The accused dropped the knife and left the area on foot. Witnesses called for an ambulance, so the complainant, conveyed to Royal Perth Hospital, received medical treatment. The accused was located and interviewed. He gave an explanation, 'Someone made me do it.'
[6] ts 3 (7/10 2019).
Mr Cain's counsel delivered a plea in mitigation, submitting that Mr Cain had a limited criminal record with no history of violence.[7] Further, that Mr Cain was experiencing a deterioration in his personal relationship with ongoing Family Court proceedings, that Mr Cain had recently been using amphetamines to cope and that the offending was consistent with substance abuse.[8] Counsel submitted that Mr Cain was now progressing with his rehabilitation and was in a stable relationship.[9]
[7] ts 4 (7/10/2019).
[8] ts 5 (7/10/2019).
[9] ts 6 (7/10/2019).
The prosecutor submitted that a term of imprisonment was the appropriate disposition.[10]
[10] ts 3 (3/9/2019).
The magistrate imposed a term of imprisonment of 30 months and declined to suspend the term of imprisonment.[11] Before Her Honour was a pre-sentence report[12] and psychological report.[13] Her Honour determined that the offending was serious being an unexpected and unprovoked attack.[14] Her Honour observed that the potential for serious harm was high given that the assault comprised injuries to the chest and facial area.[15]
[11] ts 11 (7/10/2019).
[12] Pre-sentence report dated 1 October 2019.
[13] Psychological report dated 20 September 2019.
[14] ts 9 (7/10/2019).
[15] ts 9 (7/10/2019).
Her Honour accepted that Mr Cain had sound antecedents[16] and had a limited criminal record with no previous convictions for acts of violence.[17]
[16] ts 11 (7/10/2019).
[17] ts 9 (7/10/2019).
In mitigation, her Honour accepted that Mr Cain was now positively engaged and committed to his rehabilitation.[18] Further, Mr Cain was afforded a discount of 15% under s 9AA of the Sentencing Act 1995 (WA) for his plea of guilty.[19]
[18] ts 11 (7/10/2019).
[19] ts 11 (7/10/2019).

Appeal

The Amended Notice of Appeal pleads the two grounds of appeal in the following terms:[20]
[20] Appellant's Amended Notice of Appeal, filed 24 February 2020.
1.The sentence imposed was manifestly excessive.
2.The learned Magistrate expressly erred when she mistook the law when informing herself that the jurisdictional limit applicable to her was 3 years' imprisonment.
Particulars
a.The charge before the learned Magistrate was one charge of unlawful wounding (not in circumstances of aggravation) contrary to section 301(1) of the Criminal Code Act Compilation Act 1913 (the Code).
b.A summary conviction penalty is applicable and it is 2 years' imprisonment pursuant to section 301(1)(b) when the charge is tried summarily.
c.The Magistrate's jurisdiction to deal with the charge was invoked when the matter proceeded summarily in accordance with provisions of the Code and the Criminal Procedure Act 2004 (WA) (CPA).
d.The maximum penalty available to be imposed by the learned Magistrate was therefore one of 2 years' imprisonment.
e.The Magistrate fell into express error when informing herself incorrectly as to the law, that the maximum penalty available to her was one of 3 years' imprisonment.
f.Having informed herself incorrectly, she then imposed a sentence exceeding the jurisdictional limit, imposing a sentence of immediate imprisonment of 2 years and by 6 months.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[21] An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, acted without or in excess of jurisdiction, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[22]
[21] Criminal Appeals Act 2004 (WA), s 9(1).
[22] Criminal Appeals Act 2004 (WA), s 8.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[23] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[24]
[23] Criminal Appeals Act 2004 (WA), s 9(2).
[24] Criminal Appeals Act 2004 (WA), s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Robert‑Smith JJA).
The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[25]
[25] Criminal Appeals Act 2004 (WA), s 14.
Ground 1 contends that the sentence imposed was manifestly excessive. The ground therefore asserts implied error.
Ground 2 contends that the magistrate made an express error.
In considering ground 1, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate. There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[26]
[26] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

Assessment of the merits of the appeal

I will now consider each ground of appeal. I will first determine ground 2 given that Mr Cain contends that the magistrate made an express error of law.

Ground 2

By ground 2, Mr Cain contends that the magistrate 'expressly erred in law when informing herself that the jurisdictional limit applicable to her was 3 years' imprisonment.'[27] The respondent concedes this ground of appeal.[28] That concession is appropriately made.
[27] Appellant's Amended Notice of Appeal, filed 24 February 2020.
[28] Respondent's Submissions, filed 21 February 2020 [4].
During the sentencing hearing neither counsel for Mr Cain or the prosecutor referred to the maximum penalty for the offence. During discourse with counsel her Honour observed that 'the starting point for me isn't three years, the starting point for me is five years.'[29] Her Honour appeared to be stating her understanding as to the applicable summary conviction penalty and the maximum penalty. Counsel did not address her Honour's observation regarding the applicable penalties.
[29] ts 7 (7/10/2019).
Her Honour in her sentencing remarks then stated that the maximum penalty for the offence was 5 years' imprisonment,[30] and that the jurisdictional limit of the Magistrates Court for the offence was 3 years' imprisonment.[31] By stating that the jurisdictional limit was 3 years' imprisonment her Honour was in error. The summary conviction penalty for the offence is 2 years' imprisonment and a fine of $24,000.
[30] ts 10 (7/10/2019).
[31] ts 10 (7/10/2019).
Section 301 of the Criminal Code provides:
301.Wounding and similar acts
Any person who —
(1)Unlawfully wounds another; or
(2)Unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing to be administered to or taken by any person;
is guilty of a crime, and is liable —
(a)if the offence is committed in circumstances of aggravation, to imprisonment for 7 years; or
(b)in any other case, to imprisonment for 5 years.
Summary conviction penalty:
(a)in a case to which paragraph (a) above applies: imprisonment for 3 years and a fine of $36 000; or
(b)in a case to which paragraph (b) above applies: imprisonment for 2 years and a fine of $24 000.
Section 5 of the Interpretation Act 1984 (WA) provides that, in that Act, and every other written law, 'summary conviction penalty', when used in relation to an indictable offence, has the effect provided for by s 5 of the Criminal Code. Section 301(1) of the Criminal Code is an indictable offence.[32]
[32] Interpretation Act 1984 (WA), s 67(1a).
Section 5 of the Criminal Code sets out the meaning and effect of a 'summary conviction penalty'. Section 5 relevantly provides:
5.Summary conviction penalty, meaning and effect of
(1)This section applies if —
(a)a provision of this Code, or another written law, provides a summary conviction penalty for an indictable offence; and
(b)a person (the accused) is charged before a court of summary jurisdiction (the court) with committing the indictable offence in circumstances where the summary conviction penalty applies to the offence (the charge).
…
(8)If the court convicts the accused of the offence charged (whether after a plea of guilty or otherwise), the accused is liable to the summary conviction penalty provided for the offence, unless the court commits the accused for sentence.
The effect of s 301 of the Criminal Code, the definition of 'summary conviction penalty' in s 5 of the Interpretation Act, and s 5(1) and s 5(8) of the Criminal Code, read together, is that if, as in the present case, a court of summary jurisdiction convicts an accused of an indictable offence (whether after a plea of guilty or otherwise) the accused is liable to the summary conviction penalty for the offence 'unless the court commits the accused for sentence' pursuant to s 5(8) of the Criminal Code.
Section 9 of the Sentencing Act provides that if the statutory penalty for an offence is a particular term of imprisonment, then that penalty is the maximum penalty that may be imposed for the offence unless the statutory penalty is a mandatory penalty or includes a minimum penalty. Section 4 of the Sentencing Act provides that the term 'statutory penalty' in relation to an offence means the penalty specified by a written law for the offence.
Where a statutory penalty is one of imprisonment and a fine, the court has sentencing options under s 42(2) and s 39(2)(c) ‑ (h) of the Sentencing Act.
Given that Mr Cain was convicted summarily, the summary conviction penalty was applicable. Mr Cain was convicted of an offence under s 301(1), but not in circumstances of aggravation. Therefore, the summary conviction penalty for an offence of unlawful wounding (not in circumstances of aggravation) is 2 years' imprisonment and a fine of $24,000. The maximum penalty for the offence was 5 years' imprisonment but the correct jurisdictional limit was 2 years' imprisonment and a fine of $24,000.[33] If Mr Cain had been convicted summarily of the offence of unlawful wounding in circumstances of aggravation then the jurisdictional limit would have been 3 years' imprisonment and a fine of $36,000.[34]
[33] Criminal Code (WA), s 301(1)(b).
[34] Criminal Code (WA), s 301(1)(a).
Accordingly, the maximum term of imprisonment that could have been imposed on Mr Cain was 2 years' imprisonment.
The magistrate appears to have erroneously referred to the summary conviction penalty for the offence of unlawful wounding committed in circumstances of aggravation, rather than s 301(1) of the Criminal Code which is the offence charged. As I have outlined, the prosecutor amended the charge twice in respect of the circumstance of aggravation. However, the plea taken by her Honour on 3 September 2018 was a plea to the charge under s 301(1) of the Criminal Code but not in circumstances of aggravation.
The failure to take into account the correct summary conviction penalty or the maximum penalty for an offence constitutes an error of law.[35] Her Honour further erred in law by imposing a term of imprisonment in excess of the summary conviction penalty and thereby exceeded the jurisdictional maximum penalty and consequently exceeded jurisdictional limits.
[35] Rodi v The State of Western Australia [No 2] [2014] WASCA 233.
Accordingly, leave is granted on ground 2, the ground of appeal is allowed and Mr Cain must be resentenced. Necessarily, given the error made in imposing a term of imprisonment in excess of the summary conviction penalty, I must resentence. That is because there has been a substantial miscarriage of justice,[36] and a different sentence should be imposed.[37]

Ground 1

[36] Criminal Appeals Act 2004 (WA), s 14(2).

[37] Powell v Tickner [2010] WASCA 224.

By ground 1, Mr Cain complains that the sentence imposed was manifestly excessive. That is, that in all the circumstances, including those personal to the appellant, the sentence imposed was not one open in the exercise of a sound sentencing discretion. It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[38]
[38] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J).
A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long. Mr Cain contends that the length of the sentence was manifestly excessive.
To determine whether a sentence is excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[39]
[39] Sentencing Act1995 (WA) s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.
Given that I have determined that ground 2 must be allowed and that Mr Cain must be resentenced I will not determine ground 1. Her Honour imposed a term of imprisonment in excess of the applicable summary conviction penalty and therefore, a complaint that the term of imprisonment imposed is manifestly excessive does not properly arise.

Resentencing

As I have observed, the summary conviction penalty for the offence of unlawful wounding under s 301(1) not in circumstances of aggravation is 2 years' imprisonment and a $24,000 fine when the offender is dealt with summarily. Whilst the maximum sentence that the magistrate could impose summarily was one of 2 years' imprisonment, it is relevant to have regard to the statutory maximum (5 years' imprisonment) and not merely the jurisdictional limit in assessing the seriousness of the offence.
Turning to the circumstances of the offending, her Honour described the injuries as serious requiring sutures.[40] The victim received injuries to his chest and chin which were described in the facts to which Mr Cain pleaded guilty as small wounds.[41] Her Honour correctly observed that the 'potentiality for serious harm is very, very real' and therefore, the offending was serious.[42] The threat to life and health posed by Mr Cain's act and the possibility of more serious harm is a relevant sentencing consideration.[43]
[40] ts 10 (7/10/2019).
[41] ts 3 (7/10/2019).
[42] ts 9 (7/10/2019).
[43] Moran v The State of Western Australia [2011] WASCA 137 [20].

The infliction of the wounding was unprovoked and unexpected. The background to the offending was that there was some animosity between Mr Cain and the victim.[44] The magistrate stated that the offending was perhaps borne out of Mr Cain's abuse of methylamphetamine prior to his attack on the victim.[45] The use of that illicit substance provides some explanation for the otherwise inexplicable conduct but affords no mitigation.[46] Her Honour accepted that during the period prior to the offending Mr Cain's father had died and that his relationship with his partner was dissolving.[47] Her Honour correctly observed that Mr Cain's actions may be described as bizarre.[48]
[44] ts 10 (7/10/2019).
[45] ts 10 (7/10/2019).
[46] The State of Western Australia v Smith [2016] WASCA 153 [31] (Buss P and Mazza JA) [100] (Mitchell JA).
[47] ts 9 (7/10/2019).
[48] ts 10 (7/10/2019).
The author of the psychological report stated that it appears that Mr Cain committed the act of violence towards the victim through exaggerated fear while this 'perception was potentially influenced through substance abuse, chronic acute stress and negative peer influence at the time.'[49] The psychologist assessed Mr Cain as being at low risk of offending in a violent manner.[50]
[49] Psychological Report dated 20 September 2019.
[50] Psychological Report dated 20 September 2019.
Turning to Mr Cain's personal circumstances, he was sentenced as a 42 year old man and therefore, does not have the benefit of youth. Mr Cain has a limited criminal record with no convictions for offences of violence. Her Honour observed that Mr Cain was a person who 'had no criminal convictions to speak of.'[51] In October 2018, Mr Cain was convicted of aggravated stalking and two offences of breaching protective bail conditions, which are offences that pre-date this offending. Mr Cain was sentenced to an intensive supervision order (ISO) and has been complying with that order for approximately 12 months. Her Honour accepted that Mr Cain 'was now focused on his family, working and providing a good supportive relationship to those that are around you' and further 'that he has taken the ISO very seriously'.[52] Accordingly, Mr Cain has positively engaged and is committed to his rehabilitation.
[51] ts 9 (7/10/2019).
[52] ts 11 (7/10/2019).
Her Honour found that whilst general deterrence was a significant sentencing principle, personal deterrence was not as significant in respect of Mr Cain.[53] I accept that finding.
[53] ts (7/10/2019).
The magistrate recognised the plea as a factor in mitigation and afforded Mr Cain a 15% discount pursuant to s 9AA of the Sentencing Act. The respondent submitted that a 15% discount was 'generous' given that the plea was entered on the first day of trial, but did not contend that a lesser discount should be given.[54] Mr Cain, therefore, is afforded a 15% discount under s 9AA of the Sentencing Act for his plea of guilty.
[54] Respondents Written Outline of Submissions [8].
There is no identifiable tariff for the offence of unlawful wounding.[55] Mr Cain referred to Messaoui v R,[56] Moran v The State of Western Australia,[57] and R v Barbis & Rouse.[58] The respondent also relied on Moran v The State of Western Australia and further the decisions of Smith v The State of Western Australia,[59] and The State of Western Australia v Smith.[60] I have considered those decisions.
[55] Moran v The State of Western Australia [2011] WASCA 137 [21].
[56] Messaoui v R (Unreported, CCAWA, Library No 92101, 4 December 1991).
[57] Moran v The State of Western Australia [2011] WASCA 137.
[58] R v Barbis & Rouse [2003] WASCA 107.
[59] Smith v The State of Western Australia [2010] WASCA 176.
[60] The State of Western Australia v Smith [2016] WASCA 153.
Whilst decisions provide guidance to courts who must seek to achieve broad consistency in sentencing, this type of offence may be committed in a wide variety of circumstances and with much disparity in the particular offender's antecedents. In short, previous decisions provide guidance as to what may constitute a sound exercise of discretion in a particular case, but they do not determine what the appropriate sentence should be.[61]
[61] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53] ‑ [54].
After considering the maximum penalty, the circumstances of the offending, mitigating factors and aggravating factors and the standard of sentencing customarily observed with respect to the offence, I am of the view that the appropriate disposition is a term of imprisonment of 18 months. In imposing a term of imprisonment of 18 months, I am mindful that Mr Cain has reasonably sound antecedents, has a limited criminal record with no prior convictions for offences of violence and has good prospects for rehabilitation.
Mr Cain has been in custody in respect of the offence since 7 October 2019. Therefore, the term of imprisonment of 18 months will be backdated to commence on 7 October 2019. I will order that Mr Cain is eligible for parole.

Conclusion

Therefore, leave is granted on ground 2 and the appeal is allowed. The sentence imposed by the magistrate is set aside and in lieu thereof a term of imprisonment of 18 months is imposed with parole eligibility.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Research Orderly to the Honourable Justice McGrath
28 FEBRUARY 2020